I’ve often considered writing a blog simply listing “100 things I don’t know about family law.” The concept is that after eighteen years practicing family law–and I do mean “practice” because much of my free time is spent reading, thinking and writing about family law–there are still important issues in family law that I have no idea what the proper answer is.

One of those 100 things is what exactly default–failing to answer the complaint in the requisite time frame–means in family court. In circuit court a defaulting “party is limited to cross-examining witnesses and objecting to evidence.” Roche v. Young Bros., Inc., of Florence, 332 S.C. 75, 504 S.E.2d 311, 314 (1998). However, under Rule 17(a), SCRFC, a defendant in default “may be heard at the merits hearing on issues of custody of children, visitation, alimony, support, equitable distribution, and counsel fees.” Previously no case law really clarified what this rule allows.

The November 9, 2011 Court of Appeals opinion in Roesler v. Roesler, 396 S.C. 100, 719 S.E.2d 275 (Ct. App. 2011), provides minimal clarification on this issue. Roeslerinvolved a divorce trial in which Wife was pro se and in default. Wife asked the trial court to dismiss the case due to lack of jurisdiction, arguing she was never a South Carolina resident. She also asked the court to appoint her an attorney. She additionally sought alimony. The trial judge denied all three requests. Wife appealed, raising those issues and also arguing that the court had erred in not requiring mandatory mediation.

The Court of Appeals rejected Wife’s jurisdictional argument, noting she had been served in South Carolina and her actions indicated an intention to be domiciled in South Carolina. It rejected her claim that she was entitled to court-appointed counsel noting that a divorce proceeding does not implicate a right to court-appointed counsel. It affirmed the mediation exemption, noting that under Rule 5(e), SCRADR, mediation can be exempted for “case specific reasons” and “good cause” and that Wife being in default with her whereabouts unknown at the time of the exemption hearing was such “good cause.”

However the Court of Appeals remanded the issue of alimony back to the family court. It noted that:

[W]hen a defendant fails to answer, the South Carolina Rules of Family Court are unclear. On the one hand, Rule 2, SCRFC, specifies that Rule 55 of the South Carolina Rules of Civil Procedure is not applicable in family court. SeeRule 2(a), SCRFC (“The following SCRCP, however, shall be inapplicable: . . . 55 . . . .”). However, Rule 17(b), SCRFC, suggests that at some point, Rule 55, SCRCP, is incorporated into the final order. SeeRule 17(b), SCRFC (“In domestic relations matters, the provisions of Rule 55, SCRCP, regarding orders of default shall be made in the final order issued by the family court.”).

This discrepancy has caused uncertainty in the bar as to handling the issue of default in family court. If Rule 55, SCRCP, is not applicable, then there is no need for our family court judges and family court practitioners to deal with unnecessary default proceedings and paperwork. If Rule 55, SCRCP, is applicable, then perhaps Rule 2, SCRFC should be amended to clarify such application and to eliminate any potential conflict. Family court practitioners and judges need guidance on how to proceed when default is involved; however, any amendment to the rules must come from the supreme court.

The Court of Appeals next examined the case of Stamey v. Stamey, 289 S.C. 507, 347 S.E.2d 112 (Ct. App. 1986). Stamey interpreted a previous version of the family courts rules which stated “[e]ven though the respondent does not file an answer, he may, with permission of the court, be heard on issues of custody of children, alimony, support and counsel fees” to meant that a family court judge has discretion on whether to allow a party in default to seek relief. Finding that this trial judge failed to exercise its discretion but merely denied to consider Wife’s plea for alimony because she was in default, it remanded this one issue without providing any guidance on how this discretion should be exercised.

Authorizing the exercise of discretion on an unclear area of law without explaining how discretion should be exercised merely substitutes one unclarity for another. One can hope the Supreme Court accepts the Roeslercourt’s suggestion that a rule amendment is in order so I can cross this unknown off my list.